Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 17, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115665
HEATHER ANNE BEARSS,
Defendant-Appellant.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
After reversing defendant's conviction for obtaining
money by false pretenses,1 the Court of Appeals remanded this
case to the trial court with instructions to enter judgment on
a cognate offense. We granted leave to consider the
constitutionality of this remedy. After deliberation, we find
that the appellate court's directed verdict violates the Due
Process Clause of the Fourteenth Amendment to the United
1
MCL 750.218; MSA 28.415.
States Constitution. US Const, Am XIV.
I
Defendant Heather Anne Bearss and her friend, Tiffany
Ruppert, visited Glen's Market and Horizon Video in the
Petoskey area. The two women selected a substantial quantity
of merchandise from each store and paid with checks written by
Ms. Ruppert and drawn against her bank account.
The next day, Ms. Ruppert reported that the checks had
been lost or stolen. The police investigated and questioned
both Ms. Ruppert and defendant. Ms. Ruppert confessed her role
in the transactions, agreeing to testify against defendant in
exchange for a plea agreement.
Defendant was charged with two counts of taking over $100
by false pretenses. At the jury trial, Ms. Ruppert testified
that she and defendant mutually had devised the plan to write
checks for merchandise, report them as stolen, and then stop
payment on them. She told the jury that, after they made their
purchases, they went to defendant's home where defendant's
boyfriend burned the carbon copies of the checks. According to
Ms. Ruppert, defendant knew that Ms. Ruppert planned to report
the checks lost or stolen. She testified that the two women
wrote the checks in order to obtain merchandise without paying
for it.
The court instructed the jury on the elements of false
pretenses over $100, as well as those of the cognate offense
2
of writing three nonsufficient funds checks within ten days.
MCL 750.131a(2); MSA 28.326(1)(2). The jury found defendant
guilty of one count of taking by false pretenses over $100.
Defendant appealed. The Court of Appeals reversed her
conviction, finding insufficient evidence to support a
conviction of taking by false pretenses. Unpublished opinion
per curiam, issued July 16, 1999 (Docket No. 209568), pp 2-3.2
The panel remanded the case to the trial court, instructing it
to enter a judgment of conviction for writing three
nonsufficient funds checks in a ten-day period. The prescribed
term of imprisonment for this crime is less than that for
obtaining money by false pretenses.
Judge Murphy wrote separately. He raised concerns over
the constitutionality of remanding with instructions to enter
a judgment of conviction on a cognate offense. The jury, he
noted, never determined that defendant was guilty of the
lesser charge. The offense of writing three nonsufficient
funds checks within a ten-day period has several elements
differing from those of the false pretenses offense. Judge
Murphy opined that the Court of Appeals remedy encroached on
defendant's right not to be convicted except upon proof beyond
a reasonable doubt of committing the crime charged, citing In
2
The prosecutor did not appeal from the Court of Appeals
finding that insufficient evidence of taking by false
pretenses had been presented at trial. Thus, we have no
occasion to review that ruling today.
3
re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970),
and People v Goss, 446 Mich 587, 596; 521 NW2d 312 (1994).
Despite his reservations, Judge Murphy joined his
colleagues in remanding the case for entry of judgment on the
cognate offense. He did so because this Court had employed the
same remedy in several cases.3 If the remedy is
unconstitutional, Judge Murphy felt, it is this Court rather
than the intermediate appellate court that should make that
decision.4
We granted leave to determine whether an appellate court
may instruct a trial court to enter judgment on a cognate
offense on which a jury did not render a verdict. We find that
the appellate court's practice in this case was
unconstitutional.
II
The crimes of writing three nonsufficient funds checks
within ten days is a cognate offense of taking by false
3
Judge Murphy cited the following cases where the
Michigan Supreme Court remanded for entry of conviction on a
lesser charge: People v Brager, 406 Mich 1004; 280 NW2d 826
(1979), People v Kamin, 405 Mich 482; 275 NW2d 777 (1979),
People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and
People v Thomas, 399 Mich 826; 249 NW2d 867 (1977).
4
A previous panel of the Court of Appeals similarly
questioned the constitutionality of remanding for entry of
judgment on a cognate offense. People v Goliday, 153 Mich App
29, 35-37; 394 NW2d 476 (1986). Like Judge Murphy, the judges
in Goliday declined to find unconstitutional a practice this
Court had previously employed. The parties in Goliday did not
seek leave from this Court to appeal from the ruling.
4
pretenses over $100.5 This Court has characterized cognate
offenses as "allied offenses of the same nature." People v
Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). A cognate
offense has some elements in common with the charged offense.
It also has elements not found in the charged offense. Id.
By contrast, all the elements of a necessarily considered
lesser offense are contained within those of the greater
offense. Thus, "it is impossible to commit the greater without
first having committed the lesser." Id., citing 4 Wharton,
Criminal Law & Procedure, § 1799.
The elements of taking by false pretenses are:
(1) a false representation as to an existing
fact; (2) knowledge by the [accused] of the falsity
of the representation; (3) use of the false
representation with an intent to deceive; and (4)
detrimental reliance on the false representation by
the victim. [In re People v Jory (Genesee
Prosecutor v Genesee Circuit Judge), 443 Mich 403,
412; 505 NW2d 228 (1993).]
The elements of writing three nonsufficient funds checks
within ten days, as found in the standard jury instructions,
are: The accused (1) wrote three separate checks, drafts, or
money orders within ten days; (2) did not have sufficient
funds available in the bank to cover them; (3) knew that he
did not have sufficient funds available; and (4) when he
5
A cognate offense may or may not carry smaller penalties
than those of the crime charged. Today's opinion applies to
all offenses that may be characterized as cognate offenses of
the offense charged, not merely "lesser cognate offenses."
5
wrote or delivered each of the checks, drafts, or money
orders, intended to defraud or cheat someone. See CJI2d 29.8.
It is possible to commit the crime of taking by false
pretenses without writing three nonsufficient funds checks
within a ten-day period. Hence, the offense of writing
nonsufficient funds checks is not necessarily included within
the offense of taking by false pretenses. Both offenses
involve an intent to defraud someone; therefore they are
cognate offenses.
This Court discussed necessarily included lesser offenses
and cognate lesser offenses in People v Chamblis, 395 Mich
408; 236 NW2d 473 (1975).6 Chamblis considered whether a trial
judge may instruct a jury about lesser offenses on its own
motion. We held that the late addition of a charge of a
necessarily included lesser offense does not infringe a
defendant's right to due process. Id. at 417. The ability to
defend against the prosecutor's charges is not impaired, since
the accused is required to defend against the same evidence as
when charged with only the greater offense.
6
In People v Robert Stephens, 416 Mich 252, 260-261; 330
NW2d 675 (1982), this Court overruled Chamblis in part on
grounds unrelated to the present case. Specifically, we
overruled Chamblis' adoption of the "misdemeanor cutoff rule,"
which provided that a jury should be instructed on lesser
included offenses if the evidence supported them. If the
charged offense is punishable by incarceration for over two
years, the rule continued, a court may not instruct on lesser
included offenses carrying sentences under one year. See
Chamblis, supra at 429.
6
However, the addition of a cognate offense may require an
accused to present additional or different defenses to rebut
the evidence the prosecutor offers on the additional elements.
Id. at 418. Due process concerns may arise if the judge,
alone, decides to instruct the jury on a cognate offense.
Chamblis illustrates the constitutional difficulties that
arise when cognate offenses are equated with necessarily
included lesser offenses. The remedy under consideration in
this case activates those difficulties. It fails to recognize
that the prosecutor was obliged to prove different elements in
order to obtain a conviction of the cognate offense.
III
The state may not "deprive any person of life, liberty or
property, without due process of law . . . ." US Const, Am
XIV. In serious criminal cases, a trial by jury is guaranteed.
US Const, Am VI. The Sixth Amendment right to a jury trial is
protected by the Fourteenth Amendment, and thus, applies to
the states. Duncan v Louisiana, 391 US 145, 156; 88 S Ct 1444;
20 L Ed 2d 491 (1968).
Together, the Sixth and Fourteenth Amendments
"indisputably entitle a criminal defendant to 'a jury
determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.'"
Apprendi v New Jersey, 530 US 466, ___; 120 S Ct 2348, 2356;
147 L Ed 2d 435 (2000). In cases where the defendant invokes
7
the right to a trial by jury, "the jury, not the judge,
renders the verdict." People v Duncan, 462 Mich 47, 54; 610
NW2d 551 (2000).7
The remedy employed by the Court of Appeals in this case
runs afoul of these constitutional principles. As discussed
above, cognate offenses contain elements not found in the
charged offense. When a jury has rendered a verdict on the
charged offense, it has not necessarily rendered one on a
cognate offense. It may have left the additional elements of
the cognate offense unaddressed.
In the case under consideration, the Court of Appeals
effectively directed a guilty verdict on the additional
elements of the cognate offense. A court may not direct a
verdict of guilty, either in whole or in part. Goss, supra at
596-597, ns 12 & 13. Although the jury convicted defendant of
taking by false pretenses, an appellate court may not assume
that the jury would have found her guilty of an offense
comprised of different elements.
For example, the offense of writing nonsufficient funds
checks within ten days requires a finding that the defendant
knew sufficient funds were not available in the account. The
7
Duncan found structural error requiring reversal when a
jury was not instructed regarding any of the elements of the
crime charged. Id. at 54. When a jury is not informed of any
of the elements, it cannot fulfill its function of rendering
a reliable verdict. Id. at 54-55.
8
offense of taking by false pretenses does not require this
element. Did defendant know that the account did not contain
sufficient funds? Since the jury never ruled on the cognate
offense, we do not know if it discounted her claim that she
did not know and favored Ms. Ruppert's testimony that she did.
The jury easily could have based its verdict on evidence of
defendant's plan to falsely report the checks as stolen and
stop payment. The Due Process Clause requires that the trier
of fact, rather than an appellate court, decide whether
defendant knew that the account lacked sufficient funds.
IV
The constitutional analysis differs when the lesser
offense is one necessarily included within the greater. See
Chamblis, supra. Unlike a verdict on a cognate offense, a
jury's verdict regarding a necessarily included lesser offense
always is encompassed in the verdict on the greater offense.
Thus, our opinion today does not impede an appellate court
from remanding for entry of judgment of a necessarily included
lesser offense. The United States Supreme Court has approved
the use of this remedy in cases "when a conviction for a
greater offense is reversed on grounds that affect only the
greater offense." Rutledge v United States, 517 US 292, 306;
116 S Ct 1241; 134 L Ed 2d 419 (1996).
9
V
In the past, we have remanded for entry of conviction on
a lesser cognate offense. Five cases in which that occurred
are People v Billy Stephens, 407 Mich 402; 285 NW2d 664
(1979), People v Brager, 406 Mich 1004; 280 NW2d 826 (1979),
People v Kamin, 405 Mich 482; 275 NW2d 777 (1979), People v
Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and People v
Thomas, 399 Mich 826; 249 NW2d 867 (1977). However, all five
cases are distinguishable.8
In each of them, the trial court failed to give a
requested instruction on a cognate lesser offense. The jury
returned a guilty verdict on a greater offense for which there
was sufficient evidence. The appellate court determined that
the failure to instruct was error, and remanded for entry of
a conviction on the cognate lesser offense, a remedy that had
been requested. Given the juries' findings of guilt on the
greater offenses, the defendants in those cases could not
argue plausibly that the juries' consideration of the cognate
lesser offenses would have led to acquittals.
Conversely, in the instant case, the appellate court's
remedy cannot fairly be said to have benefited defendant.
Where, as here, a conviction on the greater offense was
secured on insufficient evidence, a defendant might argue
8
Because they are distinguishable, we make no comment on
their continued viability.
10
persuasively that the jury might have acquitted on the cognate
offense, as well. To permit appellate courts to direct a
conviction on cognate offenses is to invite violations of the
right to a jury determination of every element of the crime
charged. Hence, we find these five cases inapposite.
Conclusion
Before today, we have not taken the occasion to address
the constitutionality of directing convictions on cognate
offenses when insufficient evidence of the charged offense had
been admitted at trial. In light of our analysis, we now
disavow the practice with rare exceptions. We hold that, if
an appellate court determines that insufficient evidence was
presented to support a conviction, it may not direct a
conviction on a cognate offense on remand unless (1) there was
sufficient evidence to support a conviction of the lesser
offense and (2) the appellate court can unequivocally state
that the jury's verdict must have included a specific finding
of every element necessary to support a conviction of the
cognate offense.9
We reverse the judgment of the Court of Appeals in part.
The prosecutor did not appeal from the Court of Appeals
determination that there is insufficient evidence to support
9
To the extent that People v Chappelle, 114 Mich App 364;
319 NW2d 584 (1982), conflicts with our holding today, it is
overruled.
11
the jury's verdict on the charge of taking by false pretenses.
Therefore, we leave that aspect of the opinion intact. We
vacate the instruction to the trial court to enter a judgment
of conviction on the lesser cognate offense of writing three
nonsufficient funds checks within a ten-day period. The matter
is remanded to the trial court for further proceedings
consistent with this opinion.
CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred with KELLY , J.
12
People v. Bearss
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